COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judges Willis and Annunziata 

Argued at Alexandria, Virginia 

SEAN WILLIAM MORRIS 

 MEMORANDUM OPINION* BY 

v. Record No. 2220-97-4 JUDGE ROSEMARIE ANNUNZIATA 

 NOVEMBER 17, 1998 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF LOUDOUN COUNTY 

Thomas D. Horne, Judge 

 Bonnie H. Hoffman, Assistant Public Defender 

(Office of the Public Defender, on briefs), 

for appellant. 

 Eugene Murphy, Assistant Attorney General 

(Mark L. Earley, Attorney General, on brief), 

for appellee. 

 Sean William Morris ("appellant") appeals his conviction by 

bench trial of possessing burglarious tools with the intent to 

commit larceny in violation of Code § 18.2-94. On appeal, 

appellant contends that the police illegally detained and 

searched him without satisfying the constitutional prerequisites 

for doing so. Appellant also argues the police illegally 

obtained his statements without informing him of his 

constitutional rights. We disagree and affirm appellant's 

conviction. 

 Under familiar principles, we view the evidence in the light 

most favorable to the Commonwealth, the party prevailing below, 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
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and grant all reasonable inferences fairly deducible therefrom. 

Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47, 

48 (1991). The trial court's findings will not be disturbed 

unless plainly wrong, id., and the appellant carries the burden 

to show reversible error. Reynolds v. Commonwealth, 9 Va. App. 

430, 436, 388 S.E.2d 659, 663 (1990). Bearing this in mind, we 

set forth the relevant facts below. 

 At approximately 1:07 a.m. on October 24, 1996, Loudoun 

County Sheriff's Department Deputies, Jeffrey Lockhart, Allen 

Gabrielli, and Christopher Bailey, responded to a dispatch that 

two individuals, on foot, were suspected of auto tampering in a 

residential townhome area. Each deputy wore his uniform and 

badge of authority. A few minutes after receiving the dispatch, 

Lockhart arrived on the scene and spoke with Chris Nowak, the 

person who had reported the incident. Nowak reported that, as he 

was leaving his house, he saw someone crouched behind a vehicle 

in the parking lot. After yelling out that he would call the 

police, Nowak saw a second person near another vehicle and heard 

one of the individuals yell, "Run." Both individuals ran toward 

a wooded area of the development and disappeared. 

 As Lockhart finished speaking with Nowak, Bailey arrived 

with his K-9, Caesar. Lockhart showed Bailey the area through 

which the suspects had fled. Using Caesar to track, Bailey found 

appellant hiding against the side of a house behind evergreen 

bushes. Bailey found appellant approximately 200 to 300 yards 
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from the spot where the suspects were last seen and within 5 to 6 

minutes of giving chase from that point. Bailey ordered 

appellant to lie on the ground, placed him in handcuffs, and 

guarded him while waiting for back-up to arrive. Aware the 

second suspect might be nearby, Bailey swept the surrounding area 

with his flashlight and asked appellant where his friend had 

gone. Appellant responded by indicating the direction the other 

suspect went. 

 When Deputy Gabrielli arrived in his cruiser approximately 

one minute after Bailey's call for back-up, he helped appellant 

to his feet and brought him to the vehicle. On the way, 

Gabrielli asked, "What are you doing over here hiding in the 

bushes?" Appellant responded he had been walking back from a 

party. He also said that he was on the way to the store to get 

something to eat. Gabrielli informed appellant he was going to 

be detained, but that he was not under arrest at that time. 

 Before Gabrielli placed appellant inside his vehicle, the 

deputy asked whether he had any weapons on his person. Appellant 

stated he had a knife at his waist. Gabrielli found and removed 

the knife. Gabrielli then patted down the outside of appellant's 

clothing and found a flashlight, a pair of gloves, and a punch, a 

device with a three to four inch cylindrical handle containing a 

spring-loaded metal rod with a point on the end. 

 Gabrielli placed appellant inside his cruiser and continued 

to search the area with Bailey. The cruiser's doors were locked 
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from the outside and the windows closed. Appellant remained 

inside the cruiser, handcuffed, for approximately thirty minutes, 

after which time the police released him. 

I. LAWFULNESS OF APPELLANT'S DETENTION 

 Appellant first contends that the police arrested him in 

violation of his Fourth and Fourteenth Amendment rights. 

Appellant argues that police actions during their investigative 

stop were so intrusive under the circumstances that they enlarged 

the scope of investigative activity into an arrest without 

probable cause. We disagree. 

 While it is true that police procedures during a Terry stop 

can be so intrusive as to trigger the full protection of the 

Fourth and Fourteenth Amendments, Hayes v. Florida, 470 U.S. 811, 

815-16 (1985), there is no "litmus-paper test for distinguishing 

. . . when a seizure exceeds the bounds of an investigative 

stop." Florida v. Royer, 460 U.S. 491, 506 (1983). Instead, 

when evaluating whether an investigative stop is unreasonable, 

common sense and ordinary human experience should take precedence 

over rigid criteria. United States v. Sharpe, 470 U.S. 675, 685 

(1985); DePriest v. Commonwealth, 4 Va. App. 577, 586, 359 S.E.2d 

540, 544 (1987), cert. denied, 488 U.S. 985 (1988). Although the 

"investigative methods employed should be the least intrusive 

means reasonably available to verify or dispel the officer's 

suspicion in a short period of time," the scope of the intrusion 

permitted will vary with each case. Royer, 460 U.S. at 500. As 
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such, even complete deprivations of a suspect's liberty "do not 

convert a stop and frisk into an arrest so long as the methods of 

restraint used are reasonable to the circumstances." Thomas v.

Commonwealth, 16 Va. App. 851, 857, 434 S.E.2d 319, 323 (1993) 

(citing United States v. Crittendon, 883 F.2d 326, 329 (4th Cir. 

1989)) (finding that a seizure was not the functional equivalent 

of an arrest despite the use of handcuffs and placement of 

defendant in a police cruiser when lone officer suspected 

defendant of recent, violent criminal activity and encountered 

him late at night), aff'd on reh'g en banc, 18 Va. App. 454, 444 

S.E.2d 275 (1994). 

 Here, as police obtained the challenged evidence prior to 

placing appellant in the cruiser, we limit our assessment of 

their actions to that period of time and find that the detention 

did not constitute an arrest. Responding to a call of possible 

auto tampering by two individuals shortly after 1:00 a.m., Deputy 

Bailey found appellant concealing himself behind shrubbery 

minutes after Caesar picked up his scent. Aware that there were 

two possible suspects involved, Bailey handcuffed and guarded 

appellant until other deputies arrived. Given the facts that 

appellant had apparently attempted to avoid police detection by 

concealing himself and was suspected of participating in recent 

criminal activity, Deputy Gabrielli asked appellant if he 

possessed any weapons and patted down his clothing after he 

responded in the affirmative. Under such circumstances, this 
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conduct was not so unreasonable or intrusive as to constitute an 

arrest. 
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II. REASONABLENESS OF THE PAT-DOWN 

 We next address whether Deputy Gabrielli had reasonable 

suspicion to pat-down appellant's clothing during the 

investigative stop. We hold that he did. 

 An officer may conduct a pat-down search of a suspect's 

outer clothing if the officer reasonably believes, based on 

specific and articulable facts, that the suspect might be armed 

and dangerous. Hilliard v. Commonwealth, 17 Va. App. 23, 25, 434 

S.E.2d 911, 913 (1993). In determining whether to conduct a 

pat-down, the officer is "entitled to rely upon 'the totality of 

the circumstances--the whole picture.'" Peguese v. Commonwealth, 

19 Va. App. 349, 351, 451 S.E.2d 412, 413 (1994) (citations 

omitted). The officer does not have to be absolutely certain 

that a suspect is armed so long as "a reasonably prudent man in 

the [same] circumstances would be warranted in the belief that 

his safety or that of others [is] in danger." Terry v. Ohio, 392 

U.S. 1, 27 (1968); Lansdown v. Commonwealth, 226 Va. 204, 211, 

308 S.E.2d 106, 111 (1983), cert. denied, 465 U.S. 1104 (1984). 

 "Among the circumstances to be considered in 

connection with this issue are the 

'characteristics of the area' where the stop 

occurs, the time of the stop, whether late at 

night or not, as well as any suspicious 

conduct of the person accosted such as an 

obvious attempt to avoid officers or any 

nervous conduct on the discovery of their 

presence." To this, we add the character of 

the offense which the individual is suspected 

of committing as a circumstance which the 

officer may consider. 

Williams v. Commonwealth, 4 Va. App. 53, 67, 354 S.E.2d 79, 85 
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(citations omitted). 

 Here, the investigative stop occurred late at night 

following a report of two suspects lurking in a parking lot where 

earlier incidents of auto tampering had occurred. Based on his 

suspicion that appellant was involved in auto tampering, 

Gabrielli had reason to believe that he might be in possession of 

instruments that could be used as weapons. See Nelson v. 

Commonwealth, 24 Va. App. 823, 827, 485 S.E.2d 673, 674-75 (1997) 

(holding that it is not unreasonable for an officer to conduct a 

pat-down search when burglary is the crime for which the suspect 

is lawfully detained). Furthermore, by concealing himself behind 

bushes, appellant's conduct indicated an obvious attempt to avoid 

police. Finally, prior to the initiation of the pat-down, 

appellant told Gabrielli that he carried a knife. Thus Deputy 

Gabrielli had reasonable suspicion, based on specific and 

articulable facts, to search appellant. 

III. NECESSITY OF MIRANDA WARNINGS 

 Appellant finally contends that his statements to police 

should have been suppressed by the trial court because the 

officers improperly interrogated him without administering proper 

warnings pursuant to Miranda v. Arizona, 384 U.S. 436 (1966). 

Unless Miranda warnings have been given, any statements a suspect 

makes during custodial interrogation are inadmissible in the 

prosecution's case-in-chief. Berkemer v. McCarty, 468 U.S. 420, 

434 (1984). After applying the appropriate Fifth Amendment 
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analysis to determine whether appellant's encounter with police 

rose to the level of "custodial interrogation," we find no error 

in the failure to give Miranda warnings in this case. 

 When determining whether a suspect is "in custody" for 

Miranda purposes, "the ultimate inquiry is simply whether there 

is a 'formal arrest or restraint on freedom of movement' of the 

degree associated with a formal arrest." California v. Beheler, 

463 U.S. 1121, 1125 (1983) (per curiam) (citation omitted). This 

determination depends "on the objective circumstances of the 

interrogation, not on the subjective views harbored by either the 

interrogating officers or the person being questioned." 

Stansbury v. California, 511 U.S. 318, 323 (1994). Among the 

circumstances we consider are whether a suspect is questioned in 

familiar or neutral surroundings, the number of officers present, 

the amount of force used by officers to detain the individual, 

the degree of physical restraint, and the duration and character 

of the interrogation. Wass v. Commonwealth, 5 Va. App. 27, 

32-33, 359 S.E.2d 836, 839 (1987). When officers have a 

reasonable and articulable suspicion that a suspect is engaged in 

illegal activity they may ask a limited number of questions to 

confirm or dispel their suspicion. Cherry v. Commonwealth, 14 

Va. App. 135, 141, 415 S.E.2d 242, 245 (1992). Moreover, the 

length of time between a suspect's detention and the commencement 

of questioning is a relevant circumstance. See id. (considering 

the fact that a suspect had only been detained a short period of 
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time before officers asked if they could search his car as an 

indication that the suspect was not subjected to custodial 

interrogation). 

 There is no bright-line test, however, to distinguish a mere 

investigative stop from the commencement of custodial 

interrogation. During investigative stops, brief but complete 

deprivations of the suspect's liberty are valid, and the police 

are permitted to use methods of restraint that are reasonable 

under the circumstances. Thomas, 16 Va. App. at 857, 434 S.E.2d 

at 323. As such, "'drawing weapons, handcuffing a suspect, 

placing a suspect in a patrol car for questioning, or using or 

threatening to use force does not necessarily elevate a lawful 

stop into a custodial arrest for Miranda purposes.'" Harris v. 

Commonwealth, 27 Va. App. 554, 566, 500 S.E.2d 257, 263 (1998) 

(quoting United States v. Leshuk, 65 F.3d 1105, 1109-10 (4th Cir. 

1995)). Rather, what distinguishes Terry stops from custodial 

interrogation is that such stops "'must last no longer than 

necessary to verify or dispel the officer's suspicion.'" Id.

(quoting Leshuk, 65 F.3d at 1109). See Commonwealth v. Milner, 

13 Va. App. 556, 558-59, 413 S.E.2d 352, 353-54 (1992) (holding 

that a detention on a public street for the purpose of holding a 

suspect for identification did not require warnings, even though 

the suspect was not free to leave and was searched for weapons). 

 In this case, the deputies' detention and questioning of 

appellant did not rise to the level of custodial interrogation 
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and, thus, did not require them to give Miranda warnings. At no 

time did the deputies inform appellant that he was under arrest. 

 On the contrary, their actions following appellant's 

apprehension were directed toward confirming or dispelling their 

suspicions regarding his involvement in illegal activity and 

assuring their own personal safety. The deputies' questioning 

was brief and followed immediately after the detention. Thus, we 

affirm the trial court's refusal to suppress appellant's 

statements. 

 For the foregoing reasons, we affirm appellant's conviction. 

 Affirmed.